Sean Michael McGuire v. State

Opinion issued February 2, 2012.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-01089-CR

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Sean Michael McGuire , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Case No. 10-DCR-055898

MEMORANDUM OPINION

Sean

Michael McGuire appeals from the trial court’s denial of his first amended application

for writ of habeas corpus, in which he challenges the validity of the State’s

indictment and asserts collateral estoppel on the basis of a subsequent

indictment. We hold that the trial court did not abuse its discretion in

denying McGuire’s application.

Background

According to the State, the

following events occurred: McGuire was involved in a collision on FM 762 near

Highway 59 in Richmond, Texas. He left the scene before Texas Department of

Public Safety (DPS) troopers arrived. When the troopers arrived, they

discovered on the side of the road the dead body of David Stidman and his

motorcycle. The motorcycle appeared to have been dragged to its location.

Further down FM 762, the troopers discovered McGuire stopped in the middle of

the road in a black pickup truck. The truck had front end damage. McGuire had

bloodshot eyes, slurred speech, smelled of alcohol, and was unsteady on his

feet. He admitted to drinking before the crash. McGuire was determined to be

intoxicated and taken to Oak Bend Hospital for a blood test. His blood alcohol

level was double the legal limit at the time of the test. The test also

revealed Benzoylecognine, a cocaine metabolite, in his system.

The State charged McGuire with

felony murder (Count I) and, alternatively, intoxication assault (Count II).

McGuire filed a application for writ of habeas corpus, arguing that the

indictment was “illegal and invalid.” The trial court denied the application,

and this appeal followed.

Standard of Review

We review a trial court’s denial of habeas corpus relief

under an abuse of discretion standard. Ex parte Wheeler , 203 S.W.3d 317, 326 (Tex. Crim. App.

2006); Ex parte Necessary , 333 S.W.3d 782, 787 (Tex. App.—Houston [1st

Dist.] 2010, no pet.). Under the abuse of discretion standard, we review

questions of law de novo. Ex parte Necessary , 333 S.W.3d at 787 .

Validity of the Indictment

McGuire

challenges the indictment on two grounds. He first contends that the State’s

indictment fails to allege an offense because it “alleges the Defendant

‘committed an act clearly dangerous to human life’ by an ‘omission’ in ‘failing

to maintain an adequate lookout for traffic and road conditions’ and by

‘failing to take proper evasive actions[,’] which is on its face volatile and

contrary to the charging prohibition contained in Section 6.01(c) of the Texas

Penal Code rendering the allegations in the attempted indictment in [this case]

not having stated an offense against the laws of the State of Texas.” McGuire next

complains that he is improperly restrained of liberty via constructive custody [1] “by the imposition and

restraint of an illegal and Invalid Indictment for the Offense of Murder [in

this case] after the same facts and circumstances ha[ve] been subsequently

presented to and ruled upon adverse to the State by a duly empanel[l]ed Grand

Jury in Fort Bend County, Texas by a ‘No-Bill’ on April 25, 2011 or stated

another way in legal consequence, an adverse finding of probable cause to

believe probable Cause exist[ed] to believe Defendant committed the offense of

Murder as alleged by the State. Said continued prosecution of the case after

the said Grand Jury[’s] ‘No-Bill’ is and should be collaterally estoppe[d] and

barred, under the legal doctrine of collateral estoppel under both the Texas

and Federally Constitutionally based law and precedent in which []he seeks to

prevent the State of Texas from further prosecuting h[im] for facts and

circumstances that have already been litigated and decided adversely to the

State of Texas.”

We hold that the trial court did

not abuse its discretion in denying McGuire’s application for writ of habeas

corpus with respect to either of these arguments.

A. Requirement of Voluntary Act or Omission

Under the Texas Penal Code, a person commits

murder if, in the course of committing a felony, he commits an act clearly

dangerous to human life that causes a death. See Tex. Penal Code Ann.

§

19.02(b)(3) (West 2011). [2] Driving while intoxicated (DWI)

constitutes a felony if the person has been convicted of two prior DWIs. I d.

§§ 49.09(b)(2), 49.04 (West 2011). Count I of

the indictment in this case charges McGuire with causing David Stidman’s death

by committing an act clearly dangerous to human life while in the course of

committing the felony of driving while intoxicated after two prior convictions

for DWI. The indictment identifies the act clearly dangerous to human life as:

“while driving a motor vehicle on a public street [McGuire] failed to maintain

an adequate lookout for traffic and road conditions and failed to take proper

evasive actions, and thus collided with a motorcycle driven by David Stidman

causing the death of David Stidman” while committing his third DWI.

McGuire contends that the State’s

indictment cannot support a murder prosecution because it fails to allege an

“act” that is clearly dangerous to human life; instead, according to McGuire,

the indictment only alleges “omissions.” McGuire argues that an omission cannot

support a murder charge, relying on the “Requirement of Voluntary Act or

Omission” provision of the Penal Code. See

Tex. Penal Code Ann. § 6.01 (West 2011). This provision

provides that a person may commit an offense if he voluntarily engages in an

act or an omission, but limits the circumstances under which an offense can be

based on an omission: “a person who omits to perform an act does not commit an

offense unless a law as defined by section 1.07 provides that the omission is

an offense or otherwise provides that he has a duty to perform the act.” Id. § 6.01(c). Section 1.07 of the Penal Code defines a

“law” as meaning the Texas or United States Constitution, a state or federal

statute, a written opinion of a court of record, a municipal ordinance, an

order of a county commissioners court, or a rule authorized by and lawfully

adopted under a statute. Id. § 1.07 (West 2011).

The implication of McGuire’s

argument appears to be that his failure to maintain an adequate lookout for

traffic and road conditions and failure to take proper evasive actions are omissions

of actions that he had no legal obligation to take. But the law in Texas does

impose a duty on drivers to maintain an adequate lookout and take proper

evasive actions when necessary to avoid colliding with vehicles in front of

them, and the failure to abide by these and other traffic laws is a voluntary

act or omission upon which a criminal offense may be based. See, e.g. , Lomax v. State , 233 S.W.3d 302 , 304 n.5 (Tex. Crim.

App. 2007) (affirming felony murder conviction based on indictment alleging

that defendant “while in the course of and the furtherance of the commission of

[felony DWI] did commit an act clearly dangerous to human life, to wit: by

operating his motor vehicle . . . at an unreasonable speed, by failing to

maintain a proper lookout for traffic and road conditions, and by failing to

take adequate evasive actions prior to striking a motor vehicle occupied by [the

victim] and did thereby cause the death of [the victim].”); Stadt v. State ,

182 S.W.3d 360, 361 (Tex. Crim. App. 2005) (affirming conviction for criminally

negligent homicide in vehicle collision based on failure to control speed,

failure to maintain proper lookout for traffic and road conditions, failure to

maintain single lane of traffic, and changing lanes in unsafe manner); Crume v. State , 658 S.W.2d 607, 608

(Tex. Crim. App. 1983) (affirming conviction for involuntary manslaughter based

on indictment alleging that defendant recklessly caused victim’s death when,

while driving while intoxicated, he caused his vehicle to collide with victim

“by failing to guide his vehicle away from the Complainant and by failing to

keep a lookout for the Complainant”); Carter v. State , No. 01-07-00301-CR,

2008 WL 5177903 (Tex. App.—Houston [1st Dist.] Dec. 11, 2008, pet. struck)

(mem. op., not designated for publication) (affirming felony murder conviction

based on commission of acts clearly dangerous to human life in course of felony

DWI, “to wit: failing to maintain a single lane of traffic, failing to take

proper evasive action, failing to control his speed, failing to properly use

the safety appliances in the motor vehicle operated by the defendant in a

timely manner, or failing to maintain a proper lookout thereby striking a

vehicle occupied by [the victim] and did thereby cause the death of [the

victim]”); Goodrich v. State , 156 S.W.3d 141, 145 (Tex. App.—Dallas

2005, pet. ref’d) (affirming criminally negligent homicide conviction based on

failure to control speed, failure to maintain single lane of traffic, failure

to maintain lookout, failure to attend to existing road conditions, and failure

to take proper evasive action); see also Tex. Transp. Code Ann . § 545.062(a)

(West 2011) (requiring driver to maintain safe distance from vehicle ahead in

light of traffic and road conditions, sufficient to allow driver time to stop

safely without colliding with car ahead or veering into another vehicle, object,

or person).

Moreover, the indictment alleges the affirmative voluntary

actions of consuming alcohol and driving on a public street. See Lomax , 233 S.W.3d at 305 n.7 (noting

that, in felony murder cases based on third-offense DWI, the “voluntary act”

required includes the consumption of alcohol); see also Rogers v. State , 105 S.W.3d 630, 638 (Tex. Crim. App.

2003) (stating that section 6.01’s “voluntary act” requirement “does not

necessarily go to the ultimate act,” but rather, requires that the allegations

“include an act” that is voluntary). [3]

An indictment for felony murder is not required to allege

the constituent elements of the underlying felony. Tompkins v. State , 774 S.W.2d 195, 206 (Tex. Crim. App. 1987). And,

with respect to the elements of felony murder, it is generally sufficient for

the indictment to allege the elements of the offense without specifying the

manner and means used to commit the offense. Bowen v. State , 640 S.W.2d 929 , 930–31 (Tex. Crim. App. 1982)

(holding that indictment that alleged elements of offense was sufficient and

identification of specific acts alleged to be clearly dangerous to human life

was additional information). The indictment in this case alleges the elements

of felony murder: during the course of committing the felony of third-offense

DWI, McGuire committed acts that a jury could conclude are clearly dangerous to

human life, and those acts caused the death of David Stidman. See Tex. Penal

Code Ann. §

19.02(b)(3) (identifying elements of felony murder).

We hold that the trial court did not

abuse its discretion in denying McGuire’s writ of habeas corpus on the asserted

ground that the State failed to satisfy the requirements of section 6.01 of the

Penal Code. See Tex. Penal Code Ann. § 6.01. We overrule McGuire’s first issue.

B. Collateral Estoppel

The

State’s original indictment against McGuire charged him with murder and,

alternatively, intoxicated manslaughter. The State subsequently sought a second

indictment charging McGuire with the same two offenses. [4] According to the pleadings

in the record, the grand jury initially returned a “true bill” on both

indictments but later notified the district attorney’s office that the “true

bill” on the second indictment had been returned in error. The State dismissed

the prosecution on the second indictment and moved forward on the original

indictment.

Citing Ashe v. Swenson , McGuire asserts that the grand jury’s “no bill” of

the second indictment precludes the State from prosecuting McGuire on the

original indictment under the doctrine of collateral estoppel. 397 U.S. 436 , 90

S. Ct. 1189 (1970). The Court of Criminal Appeals rejected a similar argument

in Shumake v. State , 502 S.W.2d 758,

760 (Tex. Crim. App. 1973). In Shumake ,

after one grand jury “no billed” the State’s first indictment, a second grand

jury returned an indictment based on substantially the same facts and testimony

heard by the first grand jury. Id. Shumake

argued that collateral estoppel barred the State from prosecuting him under the

second indictment when a grand jury had returned a “no bill” on a earlier

indictment for the same charges. Id. The

Court disagreed. Id. It held that the

collateral estoppel rule in Ashe

applies to valid and final judgments, not grand jury indictments. Id. In rejecting Shumake’s argument, the

Court reiterated the rule that a prior “no bill” by a grand jury is not

material in any way to the defense of a case. Id. (citing Smith v. State ,

474 S.W.2d 486 (Tex. Crim. App. 1972)).

The reasoning in Shumake defeats McGuire’s argument here.

The State’s second indictment is not a valid and final judgment to which the

collateral estoppel rule in Ashe applies.

See Shumake , 502 S.W.2d at 760 ; see also Ashe , 397 U.S. at 443 , 90 S.

Ct. at 1194 . McGuire argues that his case is distinguishable from Shumake because the indictment that was “no billed” in

this case came after the indictment on which the State now prosecutes him. But

the analysis in Shumake is not

dependant on the order in which the indictments were presented to the grand

jury. See Shumake , 502 S.W.2d at 760 .

We see no reason that the State should be permitted to continue to seek

subsequent indictments after a “no bill” but risk losing its right to prosecute

if it seeks a subsequent indictment after a “true bill.” Nor did the second

indictment act to vitiate or cancel the first indictment. See Louis v. State , 61 S.W.3d 593, 596 (Tex. App.—Amarillo 2001,

pet. ref’d) (observing that second indictment for same offense “merely

institutes another, new criminal action against the accused” and holding that

second indictment did not prevent prosecution of defendant under first

indictment) (citing Wallace

v. State , 170 S.W.2d 762, 764

(1943); Bonner v. State ,

29 Tex. Ct. App. 223, 229 , 15 S.W. 821, 821 (1890); Trevino v. State , 900 S.W.2d 815, 817 (Tex. App.—Corpus

Christi 1995, no pet.); United States v. Stricklin , 591 F.2d 1112 , 1115 n.1 (5th Cir.),

cert. denied, 444 U.S. 963 , 100 S. Ct. 449 (1979)).

We hold that the trial court did not abuse its discretion in

denying McGuire’s application for writ of habeas on the asserted ground that

collateral estoppel bars the State from prosecuting him under the indictment in

this case. We overrule McGuire’s second issue.

Conclusion

We

hold that the trial court did not abuse its discretion in denying McGuire’s

first amended application for writ of habeas corpus.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] McGuire is not in jail but has been

released on bail.

[2] The felony must be a felony other than manslaughter. See Tex. Penal Code Ann. § 19.02(b)(3).

[3]

“Voluntariness” under Section

6.01 refers only to a person’s own physical body movements; it is separate and

distinct from any mental state requirement. See

Rogers , 105 S.W.3d at 638 – 39.

[4]

The two indictments are largely

the same but contain some differences. The first indictment separates the

murder and intoxicated manslaughter charges into two counts, while the second

indictment separates these charges into two paragraphs. The first indictment

alleges that McGuire committed an act clearly dangerous to human life while in

the furtherance of a felony or in flight from commission of a felony, while the

second indictment eliminates the “in flight” alternative. The first indictment

contains the allegations regarding McGuire’s failure to maintain a proper

lookout and failure to take evasive action, while the second indictment

eliminates those details. Finally, the first indictment references only

intoxication by alcohol in the count relating to intoxicated manslaughter,

while the second indictment includes the alternative of intoxication by

controlled substance.